n d t judgment no.: undt/2018/020 nited ations ispute

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UNITED NATIONS DISPUTE TRIBUNAL

Case No.: UNDT/NY/2017/037

Judgment No.: UNDT/2018/020

Date: 20 February 2018

Original: English

Before: Judge Alessandra Greceanu

Registry: New York

Registrar: Morten Albert Michelsen, Officer-in-Charge

PINTO

v.

SECRETARY-GENERAL

OF THE UNITED NATIONS

JUDGMENT

Counsel for Applicant:

Self-represented

Counsel for Respondent:

Alan Gutman, ALS/OHRM, UN Secretariat

Case No. UNDT/NY/2017/037

Judgment No. UNDT/2018/020

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Introduction

1. The Applicant, a staff member holding a permanent appointment serving at

the P-3 level as Procurement Officer in the Department of Management/Office of

Central Support Services/Procurement Division/Field Procurement

Service/Peacekeeping Procurement Section (“DM/OCSS/PD/FPS/PPS”) in the

United Nations Secretariat, contests “the evaluation process [which] led to United

Nations Office at Geneva’s (“UNOG”) decision to not even consider [her] for an

assessment test and interview [ ... ]” following her application to Job Opening No. 16-

PRO-UNOG-57126-R Geneva (“the JO”) regarding three Procurement Officer posts

at the P-3 level within the Procurement and Contracts Unit, Central Support Services

(“PCU/CSS”) of UNOG. As relief, the Applicant requests the Tribunal to:

a. Order the Secretary-General to assess the way the vacancies,

i.e. temporary [TJOs] and [JOs] are managed and advertised, to avoid

wasting resources of applicants (internal and non-United Nations) who

believe the vacancies to be genuine; and

b. [The Applicant] will agree to whatever compensation the

Dispute Tribunal considers to be fair and reasonable in this case.

2. The Respondent claims that the application is without merit and submits that

the Applicant was fully and fairly considered for the position, and that she is not

entitled to compensation since the contested decision was lawful.

Factual and procedural background

3. On 6 April 2016, the JO was issued in Inspira (a United Nations online

jobsite) for three posts of Procurement Officer at the P-3 level with the UNOG in the

PCU/CSS Section, and the deadline to apply for the JO was 5 May 2016.



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4. The JO included the following requirements:

Education

Advanced university degree in Business Administration, Public

Administration, Commerce, Law or other relevant disciplines. A first-

level university degree in combination with two additional years of

qualifying work experience may be accepted in lieu of the advanced

university degree.

Work Experience

A minimum of five years of progressively responsible professional

experience in procurement, contract management, administration or

related area including preferably three years of experience in the

[United Nations] common system. Experience with large scale and

complex procurement operations is desirable. Proven experience in at

least [three] of the following procurement areas is desirable: i. General

goods (vehicles, visibility items, security equipment, vaccines,

lab[oratory] equipment), ii. General services (hotels, insurance,

transportation, relocation, consultancy, utilities), iii. Information

Technology (“IT”) (internet, IT equipment and software, web services,

telephony), iv. Building (construction, maintenance, leases), and v.

Vendor registration ([United Nations Global Marketplace], Business

Seminars). Procurement experience for both field missions and

headquarters offices as well as experience working with [Enterprise

Resource Planning (“ERP”)] systems in the area of purchasing and/or

supply chain is also highly desirable.

Languages

Fluency in oral and written English is required. Knowledge of French

is desirable. Knowledge of another [United Nations] official language

is an advantage.

5. On 26 October 2016, the Applicant was notified by UNOG that her

candidature was eliminated before the assessment exercises took place.

6. On 23 December 2016, the Applicant filed a request for management

evaluation of the contested decision with the Management Evaluation Unit (“MEU”).

7. As requested on 3 January 2017, the Administration provided its comments to

MEU on 12 January 2017, stating the following relevant facts:

… On 6 April 2016, [the JO] was advertised in [Inspira], with a

closing date on 5 May 2016.



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… 705 candidates applied for this position and 470 candidacies,

including [the Applicant’s], were released by the Human Resources

Management Service (HRMS/UNOG) to the Hiring Manager for

further evaluation. As per the established practice at CSS, a draft

evaluation matrix of these 470 candidacies was done by [two] staff of

the CSS/Operations Support Unit (OSU), independently from the

Hiring Manager. The draft matrix was further verified by the Head of

the [CSS/OSU] before being transmitted to the Hiring Manager.

… Upon review of the candidacies, 178 candidates were found not

suitable, 255 were placed on the long list, including [the Applicant]

[…].

… [The Applicant’s] candidacy was placed on the long list, as it

was determined that, based on [the Applicant’s Personal History

Profile (“PHP”)] attached to her application, she met the mandatory

criteria, but did not meet all of the [five] desirable criteria to be

shortlisted. The evaluation entered in [I]nspira indicated the following:

- Three years of experience in the [United Nations]

common system - (meets criteria)

- Experience with large scale and complex procurement

operations - (meets criteria)

- Proven experience in at least [three] procurement areas

- (meets criteria)

- Procurement experience for both field missions and

headquarters offices - (does not meet [criteria])

- Experience working with ERP systems in the area of

purchasing and/or supply chain (does not meet

[criteria])

… Only candidates in the matrix that met the mandatory and

desirable criteria were considered by the Hiring Manager.

Accordingly, [the Applicant] was not considered for further

evaluation. The 32 candidates that met the mandatory and desirable

criteria were invited for a written test on 4 July 2016 […], and the

written test took place from 11 to 13 July 2016. The candidates who

passed the written test were invited for a [c]ompetency-based

interview. The interviews took place from 22 to 25 July 2016.

… On 27 September 2016, [six] candidates were endorsed by the

Central Review Committee [(“CRC”)]. The selection decisions were

made on 25 October 2016 […], and on 26 October 2016, [the

Applicant] was informed that her application was not successful.



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8. On 12 January 2017, the Administration provided the following additional

comments (emphasis omitted):

… As developed below, the Administration notes that the process

at CSS for the preparation of matrices is under the responsibility of a

unit working directly under the Chief of Service to ensure not only that

trained staff complete this complex process but also to ensure full

transparency and independence of the [short-listing] processes. The

Administration further notes that the information contained on [the

Applicant’s] PHP was incomplete and insufficient to determine that

she met all the criteria to be shortlisted. It is the responsibility of

candidates to provide complete and accurate information as the

evaluation of applications is made on the basis of the information

submitted in the PHP.

… On a side note, with respect to [the Applicant’s] contentions

that she had been previously considered for three “P-4 [P]rocurement

[O]fficer” in UNOG, the Administration notes the following:

i. [The Applicant] was “longlisted” for the JO 32305,

Procurement Officer, P[-]4 Strategic Heritage Plan

(SHP), and all 178 candidates on the longlist were

invited to the written test. [The Applicant] failed the

written test and was not invited for a competency based

interview.

ii. [The Applicant] was “shortlisted” for the JO 37216,

Procurement Officer, P[-]4 (SHP). [The Applicant] was

included in the short list based on two desirable criteria

(experience in the [United Nations] common system

and knowledge of French). She failed the technical

assessment.

iii. [The Applicant] has also applied for a P-4 “Legal and

Contracts Officer” (and not a [P]rocurement [O]fficer)

(SHP) (JO 33143), but was not shortlisted.

… Therefore, her assertion that she was considered for “three P-4

Procurement Officer Posts” is incorrect.

… Concerning her assertion that three UNOG internal staff were

already sitting on the posts, this is factually incorrect and the

Administration notes that only two UNOG staff were recruited under

the recruitment process in question, with one staff recruited from the

United Nations Office at Nairobi.

… Also, contrary to [the Applicant’s] assertion, the

ST/SGB/2016/2 and the ST/AI/2016/1 on the “staff selection system

and managed mobility” do not apply to her case. The contested



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selection exercise was made under the provisions of the ST/AI/2010/3

[(Staff selection system)] on the staff selection system.

… Information contained in [the Applicant’s] PHP

… Sec[.] 7.4 of the ST/AI/2010/3 on the staff selection system

provides that “[t]he hiring or occupational group manager shall further

evaluate all applicants released to him/her and shall prepare a shortlist

of those who appear most qualified for the [JO] based on a review of

their documentation”.

… The Manual for the Applicant on the Staff Selection System

(2015) also recalls the candidate’s responsibility to submit application

containing comprehensive and accurate information, which will serve

as the basis for evaluating the eligibility and suitability of a candidate

for a [JO]. In particular, the Manual provides that:

In relation to the requirements of the [JO], applicants

must provide complete and accurate information

pertaining to their qualifications, including their

education, work experience, and language skills. Each

applicant must bear in mind that submission of

incomplete or inaccurate applications may render that

applicant ineligible for consideration for the [JO].

Initial screening and evaluation of applications will be

conducted on the basis of the information submitted.

… It follows that the Hiring Manager evaluates applicants based

on a review of their documentation only, which should be accurate and

complete.

… The JO listed as highly desirable work experience “with ERP

system in the area of purchasing and/or supply chain”. Upon review of

[the Applicant’s] PHP, the Administration notes that she did not

mention any experience working with Umoja or with any ERP

(Enterprise Resource Planning) system. The only reference to Umoja

is in the cover letter where she states that she “completed all required

courses in Umoja”; and there is no reference to any experience with an

ERP system in her entire PHP.

… The Administration further notes that the statement “completed

all required courses in Umoja” remains very generic and does not refer

to purchasing and/or supply chain specific training in Umoja. It is to

be further noted that in the [s]ection called “[United Nations]

Training” of [the Applicant’s] PHP, the listed courses were all done in

2011 or earlier and none of them relates to Umoja or ERP. The

candidate’s application did not respond to such criteria and remained

incomplete in this regard. The Administration also recalls that

Procurement Officers may use the Umoja/ERP system with varying



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degree of responsibility in the [United Nations] Secretariat depending

on whether the Procurement Officer only establishes the contracts and

further delegates the issuance of purchase orders to field offices or

establishes both the contracts and related purchase orders.

… While [the Applicant] asserts that it was “common knowledge”

that she uses Umoja and that accordingly she should have been

shortlisted, the Administration notes that “common knowledge” is

subjective, cannot be used as a basis to assess almost 500 candidacies,

and, if used, may result in different criteria being applied to evaluation

of candidates. The Administration also recalls that the draft matrix was

prepared by OSU/CSS, and Hiring Managers rely on this

administrative support in selection exercises. At the time, the

OSU/CSS staff who prepared the matrix had no personal knowledge of

[the Applicant] or the functions performed by her.

… Since [name redacted, Mr. K] was not part of the preparation

of the draft matrix, he could not have had the intention to exclude [the

Applicant] or any other candidate from the draft matrix. Therefore, the

Administration submits that [the Applicant’s] “exclusion” from the

selection exercise was not intentional, but was merely due to the fact

that the information contained in her PHP was incomplete.

… Lastly, the Administration notes that [the Applicant] is already

at the P-3 level and that she has not submitted any evidence of harm or

moral damage caused by the contested decision.

9. On 7 February 2017, the Applicant received the MEU’s response upholding

the contested decision.

10. On 23 April 2017, the Applicant filed the present appeal against the contested

decision.

11. On 24 April 2017, in accordance with art. 8.4 of the Dispute Tribunal’s Rules

of Procedure, the Registry transmitted the application to the Respondent, instructing

him to file his reply by 24 May 2017.

12. On the same day, the case was assigned to the undersigned Judge.

13. On 24 May 2017, the Respondent filed his reply arguing, inter alia, that the

application is without merit because the Applicant was fully and fairly considered for

the position. The Applicant was not short listed and subjected to further assessment



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because, although she met the minimum criteria for the position, she did not indicate

in her application that she met the desirable criteria.

14. By Order No. 117 (NY/2017), the Tribunal instructed the Respondent to file

by 30 June 2017 “additional written evidence considered relevant, such as the

“comments and accompanying documents submitted in respect [of the Applicant’s]

request by the Chief, Human Resources Management Services (“HRMS/UNOG”) on

12 January 2017” as referenced in the response of the [MEU] dated 7 February 2017

[…]”. The parties were further instructed to file by 14 July 2017 to file separate

statements informing the Tribunal if:

…

a. The parties are amenable to an informal resolution of

the case either through the Office of Ombudsman or

through inter partes discussions;

b. Any additional evidence is requested to be produced in

the present case and if so, stating its relevance, or if the

case can be decided on the papers;

9. In case the parties are not amenable to informal negotiations,

they agree that no further evidence is requested, and that the Tribunal

may decide the case on the papers before it, they are instructed to file

their closing submissions by 5:00 p.m. on […] 28 July 2017, based

only on the evidence already before the Tribunal.

15. On 29 June 2017, the Respondent filed his reply to Order No. 117 (NY/2017),

together with the requested documents.

16. On 13 July 2017, the Applicant filed her reply to Order No. 117 (NY/2017) in

which she mentioned that she was amenable to an informal resolution of the case and,

as additional evidence, she included her observations on the Respondent’s initial

reply.

17. On 14 July 2017, the Respondent informed the Tribunal that he did not agree

to the informal resolution of the case, that he did not request the production of



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additional evidence, and that the Tribunal might decide the case on the papers before

it.

18. In the Applicant’s response to Order No. 117 (NY/2017) filed on 13 July

2017, responding to the initial reply, she stated as follows (emphasis omitted):

… Paragraphs 2, 7, 14, 19 and 21 [state as follows:] “did not

indicate in her job application that she met the desirable criteria”

“UNOG reasonably concluded that the Applicant did not meet the

desirable criteria” “did not explicitly reference any work with ERP

systems in the area of purchasing and/or supply chains” “[t]he

Applicant claims that she should have been shortlisted despite her

failure to identify her work with ERP” “no requirement under the Staff

Selection [Administrative Instruction (“AI”)] to review performance

evaluation reports during the initial screening”[.]

This is not true. ST/AI/2016/1 dated 28 [December 20]15,

[s]ec[.] 5.2 states [that] “[c]andidates are required to submit their last

two performance evaluation reports (PERs) as part of their

applications” […]. The two PERs elaborately describe all aspects of

the experience in purchasing and supply chain management. The

rationale for making the PER part of the application was to enable

Hiring Managers to manually assess a candidate’s experience and

capabilities. I have had three similar subsequent situations ([United

Nations Office in Vienna] (“UNOV/UNODC”) [P-4], [United Nations

Office in Nairobi (“UNON”) [P-3] and [United Nations Procurement

Division] [P-3]), details of which I will provide, if requested, to

evidence a pattern of lack of accountability in such cases, along with

correspondence with the Hiring Manager UNOV/[United Nations

Office on Drugs and Crimes (“UNOV/UNODC”)] who repeatedly

evaded my question as to which criterion I did not meet, Head of

Office (UNOV/UNODC) who chose not to respond at all, and an

official at UNON who said it was his understanding that the

Organization “does not share further details with unsuccessful

candidates”. It is evident that most Hiring Managers do not review

applications in their entirety, which is against provisions stipulated in

ST/AI/2016/1.

19. The Tribunal notes that the Applicant did not file closing submissions on 28

July 2017 and the application is to be considered based on her previous submissions.

20. On 28 July 2017, the Respondent filed his closing submissions.



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Applicant’s submissions

21. The Applicant’s principal contentions set in her application are as follows:

… […] UNOG’s reason for not short-listing [the Applicant’s]

candidacy was that [the Applicant] had not met the criterion “of

possessing experience working with ERP/Umoja systems in area of

purchasing and/or supply chain”. The JO stated that such information

should be in the “application”. As advised in paragraph VII.3 above,

UNOG either overlooked or ignored review of [the Applicant’s]

application in its entirety. The information requested in the JO was in

fact in [the Applicant’s] “application”.

…

… [the Applicant] had merely provided the information, stating

that [she] had previously been considered by UNOG on three

occasions and assessed for P-4 Procurement Officer positions, while

this time UNOG did not even consider [her] for an assessment for a

lateral move.

[…]

… If only the Hiring Manager had considered [her] application

fairly and objectively, he would have seen that it contained all

information that had been requested in the JO.

… UNOG stated that ST/SGB/2016/2 does not apply in [the

Applicant’s] case, to dismiss [her] assertion about preference to lateral

applicants. UNOG states that the selection exercise for the [p]osts was

conducted under the provisions of ST/AI/2010/3 – Staff Selection

System.

… As a staff member, [the Applicant] does not have the privilege

of obtaining or accessing the methodology applied by the Hiring

Manager. Even if [she] were to request, [her] request would be denied

by the management. The Organization’s thrust on mobility, time and

again, and ‘as wide a geographical basis as possible’ can not be

denied. But how can one be mobile if most offices want to achieve a

pre-determined outcome? Why did a 2010 circular apply, when the

ST/SGB [2016/2] was released on 28 [December 20]15 and the JO

was posted in April 2016? [The Applicant’s] concern in this case is

that the action of UNOG in general and the Hiring Manager in

particular lacked transparency and integrity.

… If [her] application had been given due consideration, it may

have resulted in a lateral move, not a promotion. […] [T]he Dispute



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Tribunal may […] see [the Applicant’s] comments on this vis-a-vis the

[Generic] JO:

(a) “Proven experience in at least [three] procurement

areas” [:] This “desirable” requirement for three of five

very specific areas with the combination of French

knowledge could only result in severely limiting the

pool of candidates and thus eliminating the

competition.

(b) “[three] years in the [United Nations] common system”

[:] This “desirable” criterion would have rendered it

impossible for qualified individuals to apply, who were

employed elsewhere outside the [United Nations]

system, or had worked in the [United Nations] common

system for less than three years.

… The current system of vacancy announcement, evaluation

criteria and selection process in most instances lacks integrity. In this

case, the vacancies did not exist as the staff members were either

already sitting on the posts advertised or the announcement was

tailored to select specific individuals. It is not a competitive process in

the true sense - where the best qualified and experienced candidates

could be tested and selected. It is evident from UNOG’s own

statements that it did not even care to read my application in its

entirety.

… Over the last twelve months, [the Applicant] applied to over

130 [JOs/Temporary JOs] at the P-3/P-4 levels, within/outside [the

Procurement Division], for peacekeeping and political [m]issions

(including hardship [m]issions), [offices away from United Nations

Headquarters] and [United Nations] Agencies and, of late, [United

Nations] Entities. [The Applicant] often passed highly challenging

assessment tests, and then the process failed [her] at the interview.

When [the United Nations] want someone who is on a roster, they

select from the roster; when that someone is not on the roster, they

issue a [JO], and then somehow make it possible to achieve their

desired outcome. While the [United Nations] management demands

ethics, transparency, fairness and objectivity from its personnel, it

itself routinely either ignores or bluntly violates such requirements.

The entire process has become a mockery and a farce. For nine years

now, this was the recurring experience of this loyal and dedicated staff

member who (i) had good evaluations; (ii) has the right combination

of intelligence, education, knowledge, experience, skills and

conscientiousness; (iii) ranked [first] out of 130 G-to-P hopefuls in

Administration; (iv) was a high school valedic[t]orian; (v) was

rostered five times and yet was never selected from the roster for those

positions if later advertised (as P-3 Administrative Officer by the



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[United Nations] Board of Auditors on 13 [March] 2008, by [the

Department of Safety and Security (“DSS”)] on 22 [June] 2009, and

by [the Department for General Assembly and Conference

Management] on 17 [September] 2009; as P-3 Compensation Officer

by [the International Civil Service Commission] on 2 [September]

2008; and as P-3 Ethics Officer by [the] Ethics Office on 14 [August]

2009); (vi) painstakingly studied all [United Nations] official

languages (passed [the United Nations Language Proficiency

Examination, (“UNLPE”)] in French and Spanish; passed all nine

levels in Arabic, level six in Russian, and currently at level [eight] in

Chinese); (vii) was willing to move to any location even laterally, yet

was unable to because of the manner in which vacancies are managed

and candidates selected for posts; (viii) even received a letter from

[the] Central Review Panel [United Nations Headquarters]

commending her interviewing skills.

… The internal justice system is a pillar in the overall effort to

strengthen accountability and ensure responsible decision-making. It is

in this spirit that [the Applicant] request[s] the Dispute Tribunal to:

(a) Order the Secretary-General to assess the way the

vacancies, i.e. temporary [JOs] and [JOs] […] are

managed and advertised, to avoid wasting resources of

applicants (internal and non-[United Nations]) who

believe the vacancies to be genuine; and

(b) [the Applicant] will agree to whatever compensation

the Dispute Tribunal considers to be fair and reasonable

in this case.

Respondent’s submissions

22. The Respondent’s principal contentions as set out in the reply as follows

(emphasis omitted):

… The Staff Rules relevant to the selection exercise and

ST/AI/2010/3 Staff selection system (Staff selection AI) were properly

applied. These rules provide that job applications will be reviewed on

the basis of information entered by the job applicants. The Applicant

does not establish any error in the selection process, or that the

selection process was tainted by extraneous considerations.

… The Secretary-General is vested with a wide discretion to

select staff members for positions. The Dispute Tribunal does not

substitute its own judgment for that of the Secretary-General regarding

the outcome of the selection process (Abassi). In accordance with



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[s]taff [r]egulation 4.3, selection is a competitive process. Staff

members have a right to full and fair consideration; however, a staff

member has no right to selection to a higher level position (Andrysek).

… Only in extremely rare circumstances will the Dispute Tribunal

rescind a selection exercise (Rolland). There is a presumption that

official acts have been regularly performed (Rolland). Following a

minimal showing by the Organization that the candidacy of a staff

member was given full and fair consideration, the burden of proof

shifts to the staff member, who must be able to show through clear and

convincing evidence that he or she was denied a fair chance of

appointment (Rolland).

… The Applicant received full and fair consideration.

… The allegations of fact pleaded in the Application are denied,

except as expressly admitted in the Reply.

… The Applicant’s rights to full and fair consideration have been

fully respected. The selection process was conducted in accordance

with the relevant rules and [s]taff selection AI. UNOG reasonably

concluded that the Applicant did not meet the desirable criteria of the

[JO].

… On 6 April 2016, [the JO] was advertised through Inspira with

a closing date of 5 May 2016 […].

… The Inspira system automatically pre-screened 705 job

applications received by the closing date, and released 470 job

applications to UNOG for further evaluation.

… As per the established recruitment practice at CSS, two

administrative staff members of CSS/OSU reviewed the 470 job

applications in order to identify the job candidates that met the

requirements of the [JO].

… Job applications that met the minimum requirements for [the

[JO] were placed on the longlist of candidates. The Applicant’s

application was among the 255 job applications that met the [sic]

minimum requirements for placement on the longlist.

… In accordance with [sec.] 7.4 of [ST/AI/2010/3], the job

applications were further evaluated, and those that met the desirable

requirements for [the JO] were placed on the shortlist of those who

appear most qualified for the position.

… [The JO] listed five desirable criteria: (1) three years of

experience in the [United Nations] common system; (2) experience

with large scale and complex procurement operations; (3) proven

experience in at least [three] procurement areas; (4) procurement

experience for both, field missions and Headquarters offices; and (5)



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experience working with ERP […] systems in the area of purchasing

and/or supply chains. The CSS/OSU concluded that 32 job candidates

demonstrated in their job applications that they met the five desirable

criteria.

… The CSS/OSU did not place the Applicant on the shortlist

because she was not among the most qualified job candidates. The

Applicant’s job application only demonstrated experience in the four

of the five desirable criteria […]. It did not explicitly reference any

work with ERP systems in the area of purchasing and/or supply

chains.

… The CSS/OSU provided its evaluation to the Hiring Manager,

who then reviewed and finalized the shortlisted candidates.

… The shortlisted candidates were invited to participate in a

written test in accordance with sec[.] 7.5 of [ST/AI/2010/3].

… Following the written test, eight job candidates were further

assessed through a competency based interview. Following the

assessment, the Hiring Manager recommended three job candidates for

selection. […]

… At the completion of the selection process, the Inspira system

notified the Applicant on 26 October 2016 that she was not selected

for the position.

… The Applicant claims that she should have been shortlisted

despite her failure to identify her work with ERP systems in the area

of purchasing and/or supply chains. This claim has no merit.

… Sec[.] 7.1 of [ST/AI/2010/3] provides that job applicants will

be prescreened on the basis of the information provided in their

applications. The Inspira system provides job applicants with the

opportunity to highlight how their qualifications and experience meet

the requirements of [the JO], including the desirable criteria. The

burden is on applicants to provide complete and accurate information

in their job applications. When the Applicant completed her job

application, she certified that she understood that evaluation of her

application would be conducted on the basis of the information she

submitted within her application.

… There is no requirement under [ST/AI/2010/3] to review

performance evaluation reports during the initial screening of job

applicants to determine whether they have omitted relevant

information from their job application.

… The Applicant fails to meet her burden of demonstrating that

she was denied a fair chance of selection.



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… The Applicant fails to meet her burden of demonstrating that

the decision to not select her was arbitrary, unfair, or was tainted by

any procedural flaws.

… The Applicant incorrectly claims that the recruitment exercise

was a “jargon exercise to regularize staff members who may have

already been occupying the posts [...]”. All three posts advertised

under [the JO] were new posts approved in 2016. […] The posts were

vacant prior to this selection exercise.

… The Applicant’s assertion that the selection exercise should

have been conducted pursuant to ST/SGB/2016/2 is also incorrect. The

job network of the contested position has not been transitioned to the

new staff selection and managed mobility system. Accordingly,

ST/AI/2010/3 applies to this selection exercise.

Applicable law

23. Article 101.3 of the United Nations Charter provides:

The paramount consideration in the employment of the staff and

in the determination of the conditions of service shall be the

necessity of securing the highest standards of efficiency,

competence, and integrity. Due regard shall be paid to the

importance of recruiting the staff on as wide a geographical basis

as possible.

24. Article 8.1(c) of the Dispute Tribunal’s Statute provides:

1. An application shall be receivable if:

(c) An applicant has previously submitted the contested administrative decision for management evaluation, where required.

25. Article 7.1(a) of the Dispute Tribunal’s Rules of Procedure provides:

1. Applications shall be submitted to the Dispute Tribunal through the Registrar within:

(a) 90 calendar days of the receipt by the applicant of the

management evaluation, as appropriate.



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26. ST/SGB/2016/1 (staff regulations) provides, in relevant parts:

Regulation 4.2

The paramount consideration in the appointment, transfer or

promotion of the staff shall be the necessity of securing the highest

standards of efficiency, competence and integrity. Due regard shall be

paid to the importance of recruiting the staff on as wide a geographical

basis as possible.

Regulation 4.3

In accordance with the principles of the Charter, selection of staff

members shall be made without distinction as to race, sex or religion.

So far as practicable, selection shall be made on a competitive basis.

27. ST/AI/2010/3 adopted on 21 April 2010 provides, in relevant parts:

Section 1

Definitions

The following definitions apply for the purposes of the present

instruction:

…

(m) Hiring manager: the official responsible for the filling of a

vacant position. The hiring manager is accountable to his/her head of

department/office to ensure the delivery of mandated activities by

effectively and efficiently managing staff and resources placed under

his or her supervision and for discharging the other functions listed in

sec[.] 6 of ST/SGB/1997/5 (as amended by ST/SGB/2002/11);

…

(o) Internal applicants: serving staff members holding an

appointment under the Staff Rules, other than a temporary

appointment, who have been recruited after a competitive process

under staff rule 4.15 (review by a central review body) or staff rule

4.16 (competitive recruitment examination) […];

(p) [JO]: vacancy announcement issued for one particular position

or for a set of [JOs];

(q) Lateral move: movement of a staff member to a different

position at the same level for the duration of at least one year. The new

position may be in the same or a different department or office, in the

same or a different duty station and in the same or a different

occupational group. Inter-agency loans or other movements to and

from other organizations of the United Nations common system are

recognized as “lateral moves”. Within the same department or office, a



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lateral move will normally involve a change in functions with or

without a change of supervisor. When the supervisor remains the

same, there will be a lateral move if the responsibilities are

substantially different, for example, if there is a different area of

responsibilities or a change in the departments/offices serviced by the

staff member. A change in supervisor without a change in functions

does not represent a lateral move. Temporary assignments of at least

three months but less than one year, with or without special post

allowance, shall also qualify as a lateral move when the cumulative

duration of such assignments reaches one year;

…

Section 2

General provisions

2.1 The present instruction establishes the staff selection system

(the “system”) which integrates the recruitment, placement, promotion

and mobility of staff within the Secretariat.

2.2 […] The system provides for the circulation of [JOs], including

anticipated staffing needs in missions through a compendium of [JOs]

[footnote omitted] and specifies the lateral mobility requirement

applicable for promotion to the P-5 level.

2.3 Selection decisions for positions up to and including the D-1

level are made by the head of department/office/mission, under

delegated authority, when the central review body is satisfied that the

evaluation criteria have been properly applied and that the applicable

procedures were followed. If a list of qualified candidates has been

endorsed by the central review body, the head of

department/office/mission may select any one of those candidates for

the advertised [JO], subject to the provisions contained in sec[s.] 9.2

and 9.5 below. The other candidates shall be placed on a roster of pre-

approved candidates from which they may be considered for future

[JOs] at the same level within an occupational group and/or with

similar functions.

…

2.5 Heads of departments/offices retain the authority to transfer

staff members within their departments or offices, including to another

unit of the same department in a different location, to [JOs] at the

same level without advertisement of the [JO] or further review by a

central review body […].

2.6 This instruction sets out the procedures applicable from the

beginning to the end of the staff selection process. Manuals will be



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issued that provide guidance on the responsibilities of those concerned

focusing on the head of department/office/mission, the hiring manager,

the staff member/applicant, the central review body members, the

recruiter, namely, the Office of Human Resources Management

(OHRM), the Field Personnel Division of the Department of Field

Support, executive offices and local human resources offices as well

as the occupational group manager and expert panel. Should there be

any inconsistency between the manuals and the text of the present

instruction, the provisions of the instruction shall prevail.

Section 3

Scope

3.1 The system shall apply to the selection and appointment of all

staff members to whom the Organization has granted or proposes to

grant an appointment of one year or longer under the Staff Rules at the

G-5 and above levels in the General Service category, TC-4 and above

in the Trades and Crafts category and S-3 and above levels in the

Security Service category as well as to staff in the Professional and

above categories and to the Field Service category for positions

established for one year or longer, irrespective of the functions or

source of funding. The process leading to selection and appointment to

the D-2 level shall be governed by the provisions of the present

instruction. For positions at the D-2 level, the functions normally

discharged by a central review body shall be discharged by the Senior

Review Group, prior to selection by the Secretary-General.

3.2 The system shall not apply to the following:

…

(l) Lateral movements of staff by heads of

department/office/mission in accordance with section 2.5 above.

…

Section 4

Job Openings

4.1 Immediate and anticipated [JOs] for positions of one year or

longer shall be advertised through a compendium of [JOs]. The

compendium shall include both position-specific [JOs] and generic job

openings [“GJOs”]. The compendium shall be published electronically

and shall be updated regularly.

4.2 Position-specific [JOs] shall be included in the compendium

when:



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(a) A new position is established or an existing position is

reclassified;

(b) The incumbent separates from service;

(c) The incumbent is selected for another position under

the provisions of this instruction or as a result of a

lateral reassignment by the head of department/office

within that department or office.

4.3 [GJOs] shall be issued in the compendium for the purpose of

creating and maintaining viable rosters of qualified candidates for

immediate and anticipated [JOs], identified through workforce

planning, in entities with approval to use roster-based recruitment,

such as peacekeeping operations, special political missions and other

field operations. [GJOs] shall contain information on the location of

current and anticipated [JOs] and a clause making reference to the

generic nature and roster purpose. Where such entities deem it

necessary, position-specific [JOs] may also be issued to advertise

[JOs].

4.4 The hiring manager or occupational group manager shall be

responsible for creating the [JO] and for promptly requesting the

inclusion of its announcement in the compendium, with the assistance

of the executive or local human resources office.

4.5 The [JO] shall reflect the functions and the location of the

position and include the qualifications, skills and competencies

required. [JOs], to the greatest extent possible, shall be based on

[GJPs] approved by OHRM, a previously published [JO] or a

previously classified individual job description reflecting the actual

functions of the position. The evaluation criteria of [JOs] created on

the basis of individually classified job descriptions require approval by

a central review body.

4.6 Each [JO] shall indicate the date of posting and specify a

deadline date by which all applications must be received. The [JO],

including the evaluation criteria, shall be approved by OHRM, the

local human resources offices or the Department of Field Support prior

to posting.

4.7 Pre-screening questions should be prepared as part of the [JO]

to assist in determining an applicant’s suitability for the [JO] to which

he/she applied. The pre-screening questions must be related to the

responsibilities of the position and the experience and professionalism

required to undertake the functions, as reflected in the [JO].

…



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Section 5

Applications

5.1 Applications must be submitted in accordance with the

instructions set out in the [JO], including use of the electronic platform

provided for this purpose.

…

Section 6

Eligibility requirements

…

6.3 Staff members in the Professional category shall have at least

two prior lateral moves, which may have taken place at any level in

that category, before being eligible to be considered for promotion to

the P-5 level, subject to the following provisions:

…

(d) The requirement for lateral moves is waived for staff

serving against language positions that are subject to the

provisions of the administrative instruction setting out special

conditions for recruitment or placement of candidates

successful in a competitive examination for positions requiring

special language skills when applying for another such

language position.

…

Section 7

Pre-screening and assessment

7.1 Applicants applying to [JOs] will be pre-screened on the

basis of the information provided in their application to determine

whether they meet the minimum requirements of the [JOs].

7.2 OHRM, the local human resources office or the Field

Personnel Division of the Department of Field Support will

release electronically to the hiring manager (for position-specific

[JOs]) and occupational group manager (for [GJOs]), within

and/or shortly after the deadline of the [JO], the applications of

candidates who have successfully passed the pre-screening

process, together with the names of pre-approved eligible

candidates, for consideration for selection.

…

7.4 The hiring or occupational group manager shall further

evaluate all applicants released to him/her and shall prepare a



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shortlist of those who appear most qualified for the [JO] based on

a review of their documentation.

7.5 Shortlisted candidates shall be assessed to determine

whether they meet the technical requirements and competencies

of the [JO]. The assessment may include a competency-based

interview and/or other appropriate evaluation mechanisms, such

as, for example, written tests, work sample tests or assessment

centres.

….

28. The relevant provisions from the Hiring Manager’s Manual on the Staff

Selection System, issued in April 2012 and updated in October 2012 (“the Manual”)

as applicable to the selection process for the JO states as follows (emphasis omitted):

a. Chapter 7 – Understanding How Applications are Managed:

Ch. 7.1 – Overview, paras. 1-6:

… An applicant for a [JO] may be a rostered applicant, a

new applicant or a qualified applicant identified through a

targeted outreach campaign.

… For screening the basic eligibility of the large pool of

applicants, an automated pre-screening mechanism will assist

in filtering new applications, resulting in a qualitative

improvement rather than a quantitative increase in applicants.

… The automated pre-screening mechanism contains key

conditions that will screen out non-eligible and non-qualified

applicants from the outset based on the pre-determined

eligibility requirements and commensurate with the job

qualifications as stated in the [JO] and evaluation criteria. It

will eliminate duplication of screening the same extensive list

of applicants and will apply efficient pre-screening based on

objective criteria. [I]nspira will keep a record of which criteria

were checked to indicate that a particular condition was met or

failed by an applicant. Where the Recruiter determines to

overwrite the automated pre-screening results or makes a

manual assessment, this is also recorded. Documentary

evidence is maintained.

… Where additional information is required, along with

the response to the Recruiter’s correspondence, this is recorded

as well.

… A complete application consists of:



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a. The cover letter;

b. Part of the profile;

c. The application form; and

d. The [electronic performance appraisal] [“e-

PAS”] reports (applicable to staff members

only).

… A Personal History Profile (PHP) is a date stamped

version of the application form static for either a particular

[JO] or static as printed on a certain date.

… Hiring team members (i.e. Recruiter, Hiring Manager,

etc.), depending on their role in the evaluation of the

application (profile and application) will have access to either a

complete or partial application.

a. The Recruiter will have access to the full

application.

b. The Hiring Manager will be able to view the

following application information:

Address, Preferences, Cover Letter,

Publications, Education, Relations,

Employment, Response to Questions, Address,

Preferences, General Details (Name, Date of

Birth, Nationality, Gender), Skills Required

for the [JO], Language, [United Nations Civil

Service] Status (if applicable), Licenses and

Certificates, [United Nations] Training.

…

Ch. 7.2 – Managing New Applications:

… Applications must be submitted electronically as

indicated in the [JO].

… Every new application received passes through the

automated pre-screening mechanism in line with the eligibility

requirements and commensurate with the job qualifications as

stated in the [JO] and evaluation criteria. At the end of this

process, each applicant is either found eligible, not eligible or

forwarded to the Recruiter for an in-depth review. In case of

the latter, the Recruiter has to make a decision as to whether

this particular applicant is eligible or not for the particular

[JO]. Cases that are forwarded for a manual human resources

review are discussed in more detail under each eligibility rule.



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…

… Where applications received from serving staff

members holding an appointment other than a temporary

appointment do not contain the required copies of the latest

two performance appraisal reports, the Hiring Manager, in

liaison with the Recruiter, shall request these documents in

writing from the applicant, or if unavailable, a short

explanation as to why these are not available. The Hiring

Manager may expect to receive a reply within five working

days.

…

Ch. 7.4 – Eligibility Rules: Reviewing Automated Pre-

screening and Conducting [Human Resources] Assessment:

…

Ch. 7.4.2 – Eligibility Criteria for All Applicants:

…

Sec. 7.4.2.2 – Knowledge of Language:

… An applicant must meet the language skills as stated in

the [JO]. The level of knowledge is recorded as basic,

confident or fluent. [JOs] require either ‘fluency in’ or

‘knowledge of’ a language. ‘Fluency’ equals ‘Fluent’ in all

four areas (speak, read, write, understand) and ‘knowledge of’

equals a rating of ‘confident’ in any of the two out of four

areas.

… An applicant is automatically pre-screened by the

system for meeting the required knowledge of languages based

on the indication in his/her application. When this requirement

is met, an applicant is considered eligible. When the

requirement is not met, serving staff holding an appointment

other than a temporary appointment are manually reviewed by

the Recruiter who uses judgement based on the available

information, including IMIS data and related software bridges,

such as the “EZ HR” tool in determining whether the applicant

is released to the Hiring Manager for evaluation. An applicant

who is not a serving staff member and who does not meet the

language requirement is automatically screened out and not

eligible.

Sec. 7.4.2.3 – Level of Job-Specific Expertise:

For [JOs] that require the applicant to perform a self-

assessment on a set of skills, the applicant must possess the

required level of expertise as stated in the [JO]. Each higher-



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level implies control of the previous level’s functions and

accuracy. The level of expertise is recorded as:

a. Not Applicable

b. Unsatisfactory

c. Partially Satisfactory

d. Satisfactory

e. Outstanding.

…

Chapter 9 – Conducting Assessments:

Chap. 9.1 – Overview:

… Applicants who have successfully passed the pre-

screening process are released to the Hiring Manager on a daily

basis within the posting period shortly after the posting of the

[JO]. Eligible roster applicants who have expressed interest, by

submitting an updated PHP via [I]nspira, in the [JO] are also

released to the Hiring Manager as a priority within the posting

period of the [JO].

… While the Hiring Manager may conduct his/her

preliminary evaluation of the applicants’ academics, work

experience and knowledge of languages immediately when an

application is released to him/her, it is not until after the

deadline date of the [JO] that the Hiring Manager, together

with the assessment panel, conducts the assessment exercise as

stipulated in the [JO]. The most promising applicants are

subsequently invited for a competency-based interview.

… Short-listed applicants shall be assessed to determine

whether they meet the technical requirements and

competencies of the [JO]. Hiring Managers or [Occupational

Group Managers] shall use the appropriate assessment methods

commensurate to the knowledge and competencies required for

the position.

…

Chap. 9.2 – Evaluating Applicants:

… The standards set out below must be adhered to

organization-wide in order to avoid variance in how

evaluations and assessments are conducted and recorded.

… In order to speed up the process, the Hiring Manager

may start analyzing the applications of released applicants

before the deadline date of the [JO]. Evaluating each



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application entails reviewing and documenting the findings of

a preliminary analysis for each applicant as to whether he/she

meets all, most, some or none of the stipulated requirements

against the evaluation criteria as stated in the [JO] in terms of:

a. Academics;

b. Experience;

c. Language.

It is preferred to use clear evaluation requirements listed as

“required” or “desirable”’ in the job posting. However, the

specialized test and/or interview shall not commence until after

the deadline date of the [JO] and until all eligible applicants

have been released.

… During the preliminary evaluation of each applicant, the

Hiring Manager will review and rate each applicant in the three

areas (academic, language and experience). The Hiring

Manager may place the applicant in one of the following lists:

a. Not Suitable - these applicants are rated

unsatisfactory in any one of the three areas

(academic, language or experience). No general

comments are required, however, it must be

self-evident as to why the applicant is not

suitable.

b. Long List - these applicants seemingly meet the

basic evaluation criteria but may not meet the

desired qualifications as outlined in the [JO].

They are considered qualified for the job and

should be placed on the long list for further

consideration and possible movement to the

short list. A rating is required for each area

(academic, language and experience) but a

general comment is [only] required for staff

members of the United Nations Secretariat.

c. Short List - these applicants seemingly meet the

basic evaluation criteria as well as all defined

desirable qualifications as outlined in the [JO].

They are considered the most promising

applicants for the job and should be convoked to

an assessment exercise and/or interview to be

conducted by the assessment panel. A rating is

required for each area (academic, language and

experience) and a general comment is required

for [all] applicants.



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29. The relevant provisions from the Applicant’s Manual of August 2012 are as

follows:

Chapter 2 – Overview of the Application Process

…

Step 4 – Complete the application:

Completing the application involves four parts:

Part 1 - Create Your Application:

Once your profile is saved, you can create an application. It is

suggested that you prepare your application in advance even if you are

not planning to apply for a [JO] right away, so that once a position of

interest has been identified, the application process has already been

started.

The application form consists of several sections: Preferences,

Education and Work Experience, Skills, References, and Cover Letter

and Additional Information. Submitting a complete and accurate

application is integral in the application process.

A resume or CV is not accepted and is considered neither a substitute

nor a complementary document to a duly completed application. Any

supplemental information or documentation that the Organization may

require will be requested in the course of the application.

Part 2 - Write the Cover Letter:

Part of the application includes the writing of a cover letter. The cover

letter is the personal introduction that accompanies your application. A

cover letter should be brief, three to four paragraphs, and as targeted as

possible to the position.

Part 3 - Access and Update Your Draft Application:

When you apply to a [JO], the last version of your application appears.

The application can be updated as well as any draft applications that

have been created and saved but not submitted to a particular [JO].

Once an application has been submitted to a [JO], it can no longer be

updated. It is recommended that you update your application for every

[JO] you apply to so that it is targeted to the position.



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Part 4 - Apply to a [JO] and Answer the Questions (as applicable):

To apply to a [JO], you have to link your application to the [JO] of

interest. Once you have applied to the position a series of questions,

(10 to 15) may appear. These questions are selected from a library of

questions, are objective and relate to the position. They are used to

filter applicants and a passing grade of 80% is required.

Step 5 - Submit the Application:

Submit your application as early as possible after a [JO] has been

posted and well before the deadline date stated in the [JO]. [JOs]

posted on the Careers Portal are taken off at midnight (GMT-5) on the

deadline date. You will receive an e-mail acknowledgement

confirming successful submission of your application for the [JO].

Once you submit your application, it will go through a pre-screening

process. The process checks the information you entered in your

application against the eligibility criteria. Passing the pre-screening

process would allow you to be considered by the hiring team.

Further communications between the Organization and you may vary

depending on your suitability and eligibility for the position.

…

Chapter 9 – Undergoing the Assessments:

…

Ch. 9.2 - Understanding the Evaluation of the applicants:

… The standards set out below must be adhered to organization-

wide in order to avoid variance in how evaluations and assessments

are conducted and recorded.

… In order to speed up the process, the Hiring Manager may start

analyzing the applications of released applicants before the deadline

date of the [JO]. Evaluating each application entails reviewing and

documenting the findings of a preliminary analysis for each applicant

as to whether he/she meets all, most, some or none of the stipulated

requirements against the evaluation criteria stated in the [JO] in terms

of:

a. Academics

b. Experience



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c. Language

However, the specialized test and/or interview shall not commence

until after the deadline date of the [JO] and the notification that all

eligible applicants have been released has been sent.

… During the preliminary evaluation of each applicant, the Hiring

Manager will review and rate each applicant in the three areas

(academic, language and experience).

… After this review, which is recorded in a standardized format to

enhance the quality of selected applicants, the Hiring Manager

convokes the most promising applicants to an assessment exercise.

… Applicants who meet all required qualifications but do not

meet the desirable qualifications are considered qualified for the job

and should be considered for a long list. Applicants who meet both

required and desirable qualifications are considered most promising

applicants for the position.

… After the deadline date of the [JO], a substantive assessment is

performed which may include, depending on success:

a. The knowledge-based tests or other simulation exercise;

b. The competency-based interview; and

c. The assessment of applicants for positions involving

significant functions in the management of financial, human and

physical resources as well as information and communications

technology shall also take into account the relevant criteria included in

the [JO].

… The Hiring Manager is required to prepare a reasoned record of

the evaluation of the applicants against the evaluation criteria. In doing

so, the basis for this evaluation (e.g. application, cover letter, e-PAS,

assessment exercise or interview) is indicated. The record should

compare the applicants against the evaluation criteria and the [JO], not

against one another. The Hiring Manager will review and modify the

scores for each applicant, followed by selecting the applicant for the

assessment exercises.

30. The relevant provisions from the Recruiter’s Manual (2015 version) are as

follows:

…

Chapter 5 – Advising on the Creation of a [JO]:

…



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Ch. 5.4.1 – The Evaluation Criteria – Required Years of Work

Experience:

… The minimum experience requirements contained in [Generic

Job Profiles (“GJP”)] are set to ensure the application of

organizational standards across the job families.

… For positions in the Professional and higher categories, only

relevant experience acquired at the Professional category shall be

counted. Relevant work experience obtained in the General Service

and related categories or in the Field Service Category within the

[United Nations] common system at the GS- 6, GS-7, FS-4, FS-5, S-5

to S-7, and TC-6 to TC-8 levels shall also be counted. Years of work

experience acquired as a result of the receipt of Special Post allowance

at the above qualifying levels shall also be counted.

… Staff members applying for positions one level higher than

their personal grade shall meet the minimum work experience

requirements of the position. In determining the eligibility of staff

members and other applicants against the level of the position for

which they are applying, the baseline for calculating the number of

years of work experience required shall be established using the

following tables for each respective level:

a. For positions in the Professional and higher categories

with an advanced university degree (Masters or equivalent):

i. P-2 level – a minimum of two (2) years

(applicants who passed the National

Competitive Examination, now known as the

Young Professionals Program (YPP), do not

require the two (2) years experience).

ii. P-3 level - a minimum of five (5) years.

iii. P-4 level - a minimum of seven (7) years.

iv. P-5 level - a minimum of ten (10) years.

v. D-1 level - a minimum of fifteen (15) years.

vi. D-2 level - over fifteen (15) years.

…

… Where a [JO] for a Professional category position stipulates

that a first-level university degree may be substituted by another

degree from e.g. a police academy, or another relevant diploma

typically, in the areas of Security, Mine Action, Investigations or

Crime Prevention, four additional years are added to the minimum

requirement of relevant years of experience at the respective level to

acknowledge the lack of the first-level university degree.



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… For positions advertised at the P-3/FS-6 level, staff at the FS-5

level who are selected for such positions may only be appointed at the

FS-6 level, regardless of their academic qualifications, due to the

restrictions placed by the General Assembly on movement of staff

from the General Service and related categories to the Professional

level. Staff already at the Professional level may, of course, be

appointed at the P-3 level.

… For National Professional Officer positions, the required

minimum number of years of experience are:

a. NO-A level - a minimum of one to two (1-2) years

b. NO-B level - a minimum of two to three (2-3) years

c. NO-C level - a minimum of five (5) years

d. NO-D level - a minimum of seven (7) years

e. NO-E level - over seven (7) years

…

Ch. 5.4.6 – Competencies:

… Every GJP and individually classified job description includes

a set of applicable United Nations Secretariat competencies with their

respective standard descriptions.

a. For positions in the General Service and related

category, the three most relevant competencies, one of which is

Professionalism, are included in the evaluation criteria for job

openings.

b. For positions at the Professional and higher levels, the

three most relevant competencies, are stated, plus two

managerial competencies for managerial positions. The same

number of competencies shall be listed in the published [JO].

… These definitions enable a common understanding of the core

competencies required of all staff, namely the combination of skills,

personal attributes and behavior assisting in building and maintaining

the capacity of staff and in promoting a new organizational culture.

…

Ch. 5.5.1.6 - Work Experience:

… The required work experience is defined in such a way as to

attract a suitable pool of qualified applicants. [JOs] that are too

generally defined might attract a large pool of applicants who are

generally qualified but do not necessarily meet the specific

requirements of the position. Alternatively, if the required experience

is too specific, this may eliminate perfectly suitable applicants who



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lack a narrowly defined requirement. Too narrow a description could

also lead to concerns that the [JO] has been tailored to suit a particular

applicant.

… Clearly defined experience criteria, whether required or

desirable, allow potential applicants to better understand the type of

background sought and help him/her decide whether or not to submit

an application. They allow applicants to customize their applications

to the language of specific requirements and describe in their cover

letter how he/she best meet the experience requirements. At the same

time, clearly defined experience facilitates pre-screening and

evaluation of qualified applicants.

… The nature of the required experience should not deviate from

the GJP or classified job description and must have an eliminating

question that:

a. Reflects the required number of years in line with the

provisions in the Managing Applicants section;

b. Lists additional experience qualifications, first as

‘required’, then as ‘desirable’. Applicants must meet all

‘required’ criteria;

c. Is relevant to the functions of the position, as reflected

in the responsibilities of the position.

…

Ch. 5.7.3 – Evaluation Criteria (Checklist):

Field of work and applicable area of speciality:

• Have the applicable fields of work experience and areas of

specialty, as applicable, been entered?

• Are all the fields of work experience relevant to the position?

• Are there not too many and not too few fields listed?

• Applicants are not automatically pre-screened by the system

against field and/or areas of specialty, but these nevertheless form part

of the evaluation criteria and applicants are evaluated against these

criteria in the evaluation conducted by the Hiring Manager.

• Where more than one area of work and/or area of specialty are

indicated, this entails that the applicant is expected to have experience

in at least one “and/or” the other(s) area(s). The wording in the

published [JO] will further define required versus desirable

experience.

…

Ch. 6.2.1 – Assign Alternate Recruiter:



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As a primary Recruiter, you can assign a designee (i.e. alternate,

assistant or another member of your team) to review and approve the

Evaluation Criteria, Screening Questions, Assessment Methodology

and Job Posting information submitted by the Hiring Manager, as well

as to publish the [JO]. However, you remain responsible for all actions

taken by your designee(s) and have final approval authority for the

[JO].

…

Ch. 7.4.2.3 – Level of Job-Specific Expertise:

For [JOs] that require the applicant to perform a self-assessment on a

set of skills, the applicant must possess the required level of expertise

as stated in the [JO]. Each higher-level implies control of the previous

level's functions and accuracy. The level of expertise is recorded as:

a. Not Applicable

b. Unsatisfactory

c. Partially Satisfactory

d. Satisfactory

e. Outstanding

…

Ch. 8.1 - Performing [Human Resources (“HR”)] Assessment on

prescreened Applicants:

… Applicants who apply to a published [JO] are automatically

prescreened by [I]nspira to determine whether they meet the eligibility

criteria for consideration for the position. For this purpose the

information provided by the applicant in his/her application and

profile is screened against the Evaluation Criteria of the relevant [JO].

… The disposition of an applicant who applies to a [JO] is shown

as Applied. Twice a day, namely at 7:00 hrs and 19:00 hrs Bangkok

time, the automated pre-screening is automatically executed by the

system to pre-screen applicants. At the end of this automated

prescreening process, an applicant’s status is either:

• Screen - the applicant is automatically and immediately

released to the Hiring Manager, so he/she can conduct a

preliminary evaluation right away.

• Reject - the applicant failed at least one of the pre-

screening rules and is not considered further; or

• HR Assessment Required - the applicant failed at least

one of the pre-screening rules and requires a manual

determination by the Recruiter as to whether this particular



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application is eligible or not for consideration for the relevant

[JO].

…

Ch. 9.2 - Advising on Evaluating Applications

… The standards set out below must be adhered to organization-

wide in order to avoid variance in how evaluations and assessments

are conducted and recorded.

… In order to speed up the process, the Hiring Manager may start

analyzing the applications of released applicants before the deadline

date of the [JO]. Evaluating each application entails reviewing and

documenting the findings of a preliminary analysis for each applicant

as to whether he/she meets all, most, some or none of the stipulated

requirements against the evaluation criteria as stated in the [JO] in

terms of:

a. Academics;

b. Experience;

c. Language.

It is preferred to use clear evaluation requirements listed as ‘required’

or ‘desirable’ in the job posting.

However, the specialized test and/or interview shall not commence

until after the deadline date of the [JO] and until all eligible applicants

have been released.

… During the preliminary evaluation of each applicant, the Hiring

Manager will review and rate each applicant in the three areas

(academic, language and experience). The Hiring Manager may place

the applicant in one of the following lists:

a. Not Suitable - these applicants are rated unsatisfactory

in any one of the three areas (academic, language or

experience). No general comments are required, however, it

must be self-evident as to why the applicant is not suitable.

b. Long List - these applicants seemingly meet the basic

evaluation criteria but may not meet the desired qualifications

as outlined in the [JO]. They are considered qualified for the

job and should be placed on the long list for further

consideration and possible movement to the short list. A rating

is required for each area (academic, language and experience)

but a general comment is ONLY required for staff members of

the United Nations Secretariat.

c. Short List - these applicants seemingly meet the basic

evaluation criteria as well as all defined desirable qualifications



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as outlined in the [JO]. They are considered the most

promising applicants for the job and should be convoked to an

assessment exercise and/or interview to be conducted by the

assessment panel. A rating is required for each area (academic,

language and experience) and a general comment is required

for [all] applicants.

Ch. 9.2.1 - Work Experience:

1. Relevance (or similarity):

a. What is the applicant’s field of work?

b. Does the applicant possess knowledge of a particular

geographic region covered by the job?

c. Has the applicant undertaken assignments that

correspond to the job? Has the applicant published articles or

books related to the job?

2. Work environment:

a. Does the applicant have experience in the public sector

and/or the private sector?

b. Does the applicant have experience at the international

and/or national level?

c. Does the applicant have field experience or

peacekeeping experience?

3. Depth of experience:

a. What is the nature and quality of the applicant’s

experience in his/her field of work? For example, the number

and complexity of reports drafted for the legislative organs, the

number and type of missions conducted, etc.

4. Breadth of experience:

a. Is the applicant’s experience limited to a specialized

field of work?

b. Is the applicant multi-skilled and exposed to different

fields of work?

5. Accomplishments/Tangible results achieved:

a. Does the applicant’s application indicate any significant

achievement?

b. Does the applicant appear to be a results-oriented

person?

6. Progressively responsible experience:



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a. Has the applicant been working in the same position for

many years?

b. Has the applicant advanced in terms of responsibility or

complexity of the job?

7. Managerial experience:

a. Does the applicant have the required number of years

of planning and budgetary - as well as supervisory

experience?

b. Does the applicant have the required level of

managerial responsibility (e.g., junior level management, mid-

level management, or senior level management)?

c. Does the applicant have specific achievements,

leadership, negotiation skills etc.?

8. Supplementary questions under experience:

a. Do the answers provided by the applicant reveal

exposure and/or experience of the nature required for the

position?

b. Did the applicant substantiate the answer with concrete

examples?

…

Considerations

Receivability

31. The Tribunal notes that the contested administrative decision was notified to

the Applicant on 26 October 2016 and she requested a management evaluation on 23

December 2016, within 60 days of the date of notification. The present application

was filed on 23 April 2017, within 90 days of the date when the Applicant received

the management evaluation decision—7 February 2017. Therefore, the Tribunal

concludes that the application is receivable in accordance with art. 8.1(c) of the

Dispute Tribunal’s Statute and art. 7.1(a) of the Dispute Tribunal’s Rules of

Procedure.



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Scope of review

32. As consistently held by the Appeals Tribunal, staff members do not have a

right to promotion, but they have a right to full and fair consideration (Andrysek

2010-UNAT-070).

33. In Ljungdell 2012-UNAT-265 (recalled in Scheepers 2015-UNAT-556), the

Appeals Tribunal stated in para. 30:

… Under Article 101(1) of the Charter of the United Nations and

[s]taff [r]egulations 1.2(c) and 4.1, the Secretary-General has broad

discretion in matters of staff selection. The jurisprudence of this

Tribunal has clarified that, in reviewing such decisions, it is the role of

the [Dispute Tribunal] or the Appeals Tribunal to assess whether the

applicable [r]egulations and [r]ules have been applied and whether

they were applied in a fair, transparent and non-discriminatory

manner. The Tribunals’ role is not to substitute their decision for that

of the Administration [footnote: Schook 2012-UNAT-216, quoting

Sanwidi 2010-UNAT-084].

34. In Abbassi 2011-UNAT-110 (recalled in Scheepers 2015-UNAT-556), the

Appeals Tribunal stated in paras 23-24:

… In reviewing administrative decisions regarding appointments

and promotions, the [Dispute Tribunal] examines the following: (1)

whether the procedure as laid down in the [s]taff [r]egulations and

[r]ules was followed; and (2) whether the staff member was given fair

and adequate consideration.

… The Secretary-General has a broad discretion in making

decisions regarding promotions and appointments. In reviewing such

decisions, it is not the role of the [Dispute Tribunal] or the Appeals

Tribunal to substitute its own decision for that of the Secretary-

General regarding the outcome of the selection process.

35. In Aliko 2015-UNAT-540, the Appeals Tribunal summarized its jurisprudence

on the judicial review of selection decisions in para. 30 as follows:

“[I]t is not the function of the Dispute Tribunal […] to take on the

substantive role with which the interview panel was charged”

[footnote: Fröhler 2011-UNAT-141, para. 32]. Rather, the Dispute

Tribunal reviews the challenged selection process to determine



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whether a “candidate[…] ha[s] received fair consideration,

discrimination and bias are absent, proper procedures have been

followed, and all relevant material has been taken into consideration”

[footnote: Rolland 2011-UNAT-122, para. 20]. The burden is on the

candidate challenging the selection process to “prove through clear

and convincing evidence” that he or she did not receive full and fair

consideration of his or her candidacy, the applicable procedures were

not followed, the members of the panel exhibited bias, or irrelevant

material was considered or relevant material ignored [footnote: Ibid.,

para. 21].

On the merits

36. In Korotina UNDT/2012/178 (not appealed), the Tribunal stated as follows:

... As the Tribunal stated in Villamoran UNDT/2011/126, at the

top of the hierarchy of the Organization’s internal legislation is the

Charter of the United Nations, followed by resolutions of the General

Assembly, staff regulations, staff rules, Secretary-General’s bulletins,

and administrative instructions. Information circulars, office

guidelines, manuals, memoranda, and other similar documents are at

the very bottom of this hierarchy and lack the legal authority vested in

properly promulgated administrative issuances.

… Circulars, guidelines, manuals, and other similar documents

may, in appropriate situations, set standards and procedures for the

guidance of both management and staff, but only as long as they are

consistent with the instruments of higher authority and other general

obligations that apply in an employment relationship (Tolstopiatov

UNDT/2010/147, Ibrahim UNDT/2011/115, Morsy UNDT/2012/043).

… Just as a staff rule may not conflict with the staff regulation

under which it is made, so a practice, or a statement of practice, must

not conflict with the rule or other properly promulgated administrative

issuance which it elaborates (Administrative Tribunal of the

International Labour Organization, Judgment No. 486, In re Léger

(486)). It is also important to highlight that a distinction must be made

between matters that may be dealt with by way of guidelines, manuals,

and other similar documents, and legal provisions that must be

introduced by properly promulgated administrative issuances

(Villamoran, Valimaki-Erk UNDT/2012/004).

37. Section 2.1 of ST/AI/2010/3 states:



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The present instruction establishes the staff selection system (the

“system”) which integrates the recruitment, placement, promotion and

mobility of staff within the Secretariat.

38. Section 2.6 of ST/AI/2010/3 states:

This instruction sets out the procedures applicable from the beginning

to the end of the staff selection process. Manuals will be issued that

provide guidance on the responsibilities of those concerned focusing

on the head of department/office/mission, the hiring manager, the staff

member/applicant, the central review members, the recruiter, namely,

the Office of Human Resources Management (OHRM), the Field

Personnel Division of the Department of Field Support, executive

offices and local human resources offices as well as the occupational

group manager and expert panel. Should there be any inconsistency

between the manuals and the text of the present instruction, the

provisions of the instruction shall prevail.

39. ST/AI/2010/3 establishes the procedures applicable to the staff selection

process (sec. 2.6). The staff selection system manuals for “the Applicant”, “the Hiring

Manager”, “the Recruiter”, “the Department Head” and “the Central Review Bodies”,

were first issued in March 2011 in accordance with sec. 2.6 of ST/AI/2010/3. The

Tribunal is of the view that the issuance of these manuals was mandatory under

sec. 2.6 of ST/AI/2010/3, which states that “[m]anuals will be issued that provide

guidance” (emphasis added), and that the steps set out in these manuals are therefore

binding and form part of the procedures applicable from “the beginning to the end” of

the staff selection process. The Tribunal considers that the guidelines provided in

these manuals must be respected during the entire staff selection process, except

where there is an inconsistency between the text of the manuals and the text of

ST/AI/2010/3. In these circumstances, the text of ST/AI/2010/3 will prevail.

40. Section 1.1 of the Recruiter’s Manual, and sec. 1.1 of the Hiring Manager’s

Manual, both issued in April 2012 and applicable in the present case (revised in

October 2012 and in March 2015), state that the manuals serve as “a comprehensive

step-by-step guide on the staff selection process”. A similar provision is included in

the manuals for the Department Head and the Central Review Bodies.



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41. In accordance with the above-mentioned provisions, the manuals for the

Hiring Manager, Recruiter, Department Head and Central Review Body are all

comprehensive step-by-step guides on the staff selection process, which means (in

accordance with the definition of the word “comprehensive” in the Oxford English

Minidictionary (Oxford University Press, 1995) and the Webster’s New World

College Dictionary (Wiley Publishing, Inc., 2010) that they are including/dealing

with all or many of the relevant details of the staff selection process. Further, once

adopted and published on Inspira, the provisions from these manuals, which must be

in accordance with and consolidate the ones from ST/AI/2010/3 (see Asariotis 2015-

UNAT-496), establish in detail the steps to be followed in the selection process, must

be respected by the Administration.

42. In Gordon UNDT/2011/172, para. 24 (not appealed), the Tribunal reiterated

that, when the Administration chooses to use a procedure, it is bound to fully comply

with it (see also Mandol UNDT/2011/013, para. 39 (not appealed); Applicant

UNDT/2010/211, para. 28 (not appealed); Eldam UNDT/2010/133, para. 50 (not

appealed)).

43. The Tribunal will analyze, in light of the grounds of appeal, whether the

procedure as laid down in the staff regulations and rules, and the staff selection

system, including the manuals, has been applied, and whether it was applied in a fair,

transparent and non-discriminatory manner.

44. The Tribunal notes that the JO included the following basic evaluation

criteria/requirements:

Education

Advanced university degree in Business Administration, Public

Administration, Commerce, Law or other relevant disciplines. A first-

level university degree in combination with two additional years of

qualifying work experience may be accepted in lieu of the advanced

university degree.

Work Experience



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A minimum of five years of progressively responsible professional


related area including preferably three years of experience in the

[United Nations] common system.

Languages

Fluency in oral and written English is required.

45. As results from the Respondent’s submissions, it is uncontested that the

Applicant was considered to fulfil all the above-mentioned requirements for the P-3

post, she successfully passed the pre-screening process and she was included by the

Recruiter (CSS/OSU) in the long list.

46. The Tribunal considers that, according to the mandatory provisions of sec.7.4

of ST/SGB/2010/3 and sec. 9.2.3(b) of the Hiring Manager’s Manual, once a staff

member is placed by the Recruiter on the long list, the Hiring Manager has the

obligation (“shall”) to: (a) review all released applications from the long list together

with the documentation filed by each applicant and evaluate the experience of all

applicants in relation to the requirements of the JO; (b) rate all the applicants for each

area (academic, language and experience), (c) add a general comment for any

applicant who is a staff member (internal applicant) of the United Nations Secretariat.

47. The Tribunal will further analyze if these mandatory requirements were

followed in the present case.

48. The Tribunal notes that the following desirable requirements and highly

desirable requirements were included in the JO (emphasis added):

Work Experience:

DESIRABLE

[…] 1. Three years of experience in the [United Nations] common

system (out of the minimum required 5 years of professional


related area); 2. Experience with large scale and complex procurement

operations is desirable; 3. Proven experience in at least [three] of the

following procurement areas is desirable: i. General goods (vehicles,

visibility items, security equipment, vaccines, lab equipment), ii.



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General services (hotels, insurance, transportation, relocation,

consultancy, utilities), iii. Information [and] Technology (“IT”)

(internet, IT equipment and software, web services, telephony), iv.

Building (construction, maintenance, leases), and v. Vendor

registration ([United Nations Global Marketplace], Business

Seminars).

Languages:

Knowledge of French is desirable.

HIGHLY DESIRABLE

Procurement experience for both field missions and headquarters

offices as well as experience working with [Enterprise Resource

Planning (“ERP”)] systems in the area of purchasing and/or supply

chain is also highly desirable.

Languages:

[…] Knowledge of another [United Nations] official language is an

advantage.

49. The Tribunal notes that the Respondent stated that the Applicant was not

shortlisted and therefore not invited to be tested through the written test and interview

for any of the three P-3 posts because she did not fulfil the highly desirable

requirement of having experience working with ERP programmes.

50. Having reviewed the parties’ submissions together with the evidence

presented in the present case, the Tribunal considers that the contested administrative

decision was not taken in accordance with the relevant mandatory legal provisions of

ST/AI/2010/3 and with the Hiring Manager’s Manualfor the following reasons.

51. As stated by the Respondent in his reply, “In accordance with the established

recruitment practice at CSS, the evaluation of the desirable and highly desirable

criteria for the JO of the applicants placed in the long list was done by the CSS/OSU

[the Recruiter], who did not include the Applicant in the short list provided to the

Hiring Manager, because she was not among the most qualified job candidates. The

Applicant’s job application only demonstrated experience in four of the five desirable

criteria. It did not explicitly reference any work with ERP systems in the area of

purchasing and /or supply chain”.



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52. It results that the CSS/OSU took the decision not to include the Applicant on

the short list not because she was not fulfilling one of the desirable requirements, but

one of the highest desirable requirements.

53. In the present case the CSS/OSU (the Recruiter) evaluated all the candidates,

including the internal applicants, against all three requirements: mandatory, desirable

and highly desirable based only on the cover letter and the PHP (application form),

and provided a short list of the applicants which were identified to fulfil all these

requirements to the Hiring Manager.

54. The Applicant fulfilled, as results from the matrix made by the CSS/OSU, the

mandatory requirements, three out of five desirable requirements for work

experience, the highly desirable requirement for language, but she was considered not

to fulfil the highly desirable requirements for the work experience. In his response,

the Respondent is making reference only to the category of desirable requirements

and is including one of the highest desirable requirements in the category of desirable

requirements.

55. The Tribunal considers that there is no legal provision which allows highly

desirable requirements to be included in the JO, since in all manuals reference is

made only to mandatory and desirable requirements and adding “highly desirable” is

not legally justified and can result in artificial, non-transparent and incorrect

evaluations during the preliminary pre-screening process.

56. The Tribunal underlines that any of the requirements included in the JO,

mandatory and/or desirable, which are used as evaluation criteria during the

preliminary evaluation of the applicants, cannot exceed the established

responsibilities in the JO and considers that during the pre-screening stage the role of

the Recruiter and the Hiring Manager is not to make final determinations if the

applicants are fulfilling the requirements, but to identify those who appear to fulfil

them. Moreover, while the Recruiter has the option to delegate in part his activity to



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an alternate recruiter to evaluate the basic requirements, such an option is not

available for the Hiring Manager.

57. The Tribunal further underlines that according to the mandatory provisions of

sec.7.4 of ST/AI/2010/3, only the Hiring Manager or if it is the case, the occupational

hiring manager, has the exclusive competence (“shall”) to evaluate all applicants

included in the long list.

58. It results that the Hiring Manager has the obligation, due to the importance of

his/her role and personal experience, to act fairly and professionally in comparing and

evaluating the experience of the applicants against the responsibilities established in

the JO. Therefore, the Hiring Manager cannot delegate this activity to the Recruiter

and/or to other staff members. Further, the Tribunal considers that while the Recruiter

has the role to identify all the applicants who are fulfilling the required/basic

evaluation criteria and to include them in the long list of applicants to be released to

the Hiring Manager for his/her evaluation, only the Hiring Manager has the

competence to preliminary evaluate and determine the applicants which appear to be

most qualified for the JO. The Tribunal underlines that, in situations where an

applicant, after the automatic pre-screening, did not meet at least one of the basic

criteria and they are to be rejected (not to be included in the long list), the Human

Resources assessment is required, which always implies a manual review of the

applicant’s profile and application for that particular pre-screening criteria which was

not fulfilled. Such an assessment is to be conducted by the Recruiter together with the

Hiring Manager in order to ensure that the decision to reject an applicant in the pre-

screening phase, which constitutes the end of the selection process for that particular

applicant, is taken based on a fair and full evaluation of the application, which for

internal applicants includes the two latest e-PAS reports.

59. Therefore, the evaluation of the applicants against the desirable, including the

highly desirable requirements, if any, in the pre-screening phase can be legally

conducted only by the Hiring Manager, since s/he has the obligation to personally

evaluate all the applications on an individual basis, reviewing the documentation of



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each applicant, in order to determine if each respective applicant has undertaken

assignments that correspond to the JO and if s/he appears to be eligible for the JO.

Following his/her evaluation, the Hiring Manager is preparing the short list which

includes all the applicants from the long list who appear to be most qualified for the

JO and who are to be invited for the written test and /or the interview.

60. The Applicant’s Manual, the Recruiter’s Manual and the Hiring Manager’s

Manual indicate that a complete application for a JO consists in the following

documents: the cover letter, part of the profile, the application form and the e-PAS

reports (applicable to United Nations staff members only).

61. It results that when the applicant to a JO is a United Nations staff member,

his/her complete application submitted on line (through Inspira) consists in: the cover

letter, the PHP (a date stamped version of the application form static for either a

particular JO or static as printed on a certain date) and the e-PAS reports for the last

two years. Additional documentation may be filed by any applicant.

62. All these constitutive and cumulative parts of the application have equal value

and must be submitted by the applicants in order for the application to be complete.

The Tribunal underlines that there is no eliminatory order in which the different parts

of the application are to be evaluated during pre-screening stage of the selection

process and all are to be evaluated together. The legal provisions require during the

selection process the evaluation of the “application” and not the evaluation of the

“application form” (PHP), which is only one part of the application.

63. The Hiring Manager has to evaluate the information provided in the

documentation against responsibilities/requirements of the JO and to short list

applicants who are fulfilling the desirable requirements and appear the most qualified

for the JO. The Tribunal considers that all the basic and desirable evaluation criteria,

including regarding the work experience, must therefore be evaluated according to

the information included in the application (cover letter, PHP and the e-PAS reports



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for the applicants who are United Nations staff members) together with the other

documents, if any, filed by each applicant.

64. The Tribunal further considers that mandatory texts do not establish an order

of priority/preference of the documents to be reviewed and/or a hierarchy of the value

of the documentation and considers that the Hiring Manager has to review the entire

documentation filed by the Applicant. According to the fundamental legal principle

ubi lex non distinguit, nec nos distinguere debemus (where the law does not

distinguish, the interpreter is not allowed to distinguish), the Hiring Manager,

throughout the entire selection process, including the preliminary phase of pre-

screening, cannot establish an eliminatory order of the parts of the application to be

evaluated and/or cannot impose a limit as to what documentation contained in the

application is to be evaluated, namely only the cover letter and the application form

(PHP).

65. Pursuant to sec. 5.1 of ST/AI/2010/3, applications must be submitted in

accordance with the instructions set out in the JO, including the use of the electronic

platform (Inspira).

66. In the present case the Applicant, who is a current staff member, filed her

application timely, which consisted in the cover letter, PHP and the e-PAS reports for

the last two years. As previously mentioned, the Recruiter considered, based only on

the information included in the cover letter and in the PHP, that the Applicant met all

the basic evaluation criteria and all the desirable requirements for the post, but not the

highly desirable requirements.

67. The Hiring Manager reviewed and endorsed the shortlisted candidates as

prepared by the Recruiter. It results that the Applicant’s preliminary evaluation

against the desirable and highly desirable requirements for the JO and the preparation

of the short list, as per established recruitment practice, was entirely conducted by

CSS/OSU, and not by the Hiring Manager. Therefore, the Applicant’s exclusion from

the short list was done by the CSS/OSU, and not by the Hiring Manager, as required



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by the mandatory legal provisions presented above. The Hiring Manager only

reviewed the short list as provided by CSS/OSU, which contained the name of the 32

applicants short-listed by the CSS/OSU without making any personal

evaluations/ratings or changes to the initial list, and all were invited to participate in a

written test.

68. As results from the matrix prepared by the CSS/OSU, the latter considered

that the Applicant did not meet the two highly desirable requirements for work

experience, and not only the one related to ERP systems in the area of purchasing

and/or supply chain, as submitted by the Respondent.

69. The Tribunal observes that in the cover letter and in the PHP, the Applicant

described her work experience and duties in procurement as follows:

Procurement: Since Nov[ember 2003] (12.5 years), all activities

related to establishing long-term contracts for high-value goods and

services for field missions, from the initial research for suppliers to

making and defending recommendations, to liaison with [the Office of

Legal Affairs (“OLA”)] and Insurance for complex SOW [unknown

abbreviation]/contracts, to post-award contract management including

liaising with Accounts for payments to contractors. I

procured/reviewed cases for procurement of vehicles and vehicular

equipment (including sale of [United Nations] assets), defence

equipment, construction services, leasing, other engineering services,

IT and communications products/services, aircraft on long-term lease,

air/sea transportation for military contingents and/or their equipment,

and freight forwarding services. [The Applicant] also worked as

Secretary-HCC and as Vendor Registration & Management Officer

where [she] reviewed vendor applications and served as Secretary-

Vendor Review Committee. I often drafted communication to/for

senior management.

…

Experience with ensuring consistency, clarity, checks and balances in

the application of rules, policies and procedures in various areas where

[the Applicant] worked, viz [unknown abbreviation]. Accounting,

Insurance (Benefits Officer) and Procurement.

…

Description of Duties: Procured engineering support goods and

services (mainly field defence, but reviewed and recommended to the



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HCC, LCC cases for construction, leases and engineering services),

vehicles, IT and communications, short-term air transportation for

troop movements, long-term lease of aircraft, short and long-term

freight forwarding services (air and sea). Also worked as Vendor

Registration & Management Officer, and as Secretary of the

Headquarters Committee on Contracts (HCC). Researched for

suppliers, processed solicitation documents, evaluated proposals,

analysed cases, formulated presentations, made and defended

recommendations before the HCC, negotiated and drafted complex

contracts, liaised with OLA/Insurance/Accounts when necessary,

reviewed and analysed cases from field missions for presentation to

the HCC (included leases etc.). Communicated on a daily basis, both

verbally and in writing, with clients (requisitioners, suppliers, field

missions, other [United Nations] offices, agencies, entities) for

information/updates, resolving issues, guiding them on interpretation

of policy and procedures, and for post-contract management. Planned,

organised and implemented effectively by maintaining an overview,

kept track of deadlines, persistently followed up. Handled Team

Leaders' responsibilities whenever they were away (supervised one

professional and up to, four support staff, delegated work and

reviewed output) cumulative almost two years. Delivered

presentations to small and large groups including government bodies

(Chinese, Korean), trade offices in New York (United Kingdom,

France, Belgium, European Union), and large supplier groups in New

York, Romania, South Africa, Bangladesh and India.

70. The Tribunal further observes that the above-mentioned Applicant’s work

experience described by her in the PHP appears to reflect procurement activity for

both field missions and headquarters offices and experience in establishing contracts

and further delegation of the issuance of purchase orders specific to ERP, even if the

initials “ERP” were not expressly mentioned.Moreover, having reviewed the content

of the section, “Responsibilities”, described in the JO, which are the mandatory ones

to be fulfilled by the applicants, the Tribunal notes that there is no express/specific

mention to “experience related to ERP systems”, and that this was specified only in

the content of the section, “Work experience”, as being a highly desirable

requirement therefore appears to have exceeded the content of section,

“Responsibilities”. It results that the Applicant respected her obligation to describe

her experience in accordance with the terms of reference included in the section

“Responsibilities” of the JO.



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71. Furthermore, the Tribunal observes that the Applicant’s last two electronic e-

PAS reports filed as part of her application, but not evaluated as required, clearly

indicate under “Section 1 – Goals” and under “Section 6 – Mid-Point Comments”

made by her First Reporting Officer (“FRO”) that the Applicant, who was evaluated

as “successfully meets expectations”, was already undertaking professional

responsibilities which appear similar to the highly desirable ones indicated in the JO

as follows (emphasis omitted):

a. The JO provided that:

Responsibilities:

Under the general supervision of the Chief of the Procurement

and Contracts Unit, the incumbent will, within limits of

delegated procurement:

i. Plan, develop and manage the various procurement and

contractual aspects of projects of significant complexity

in the worldwide procurement of diverse services and

commodities (e.g. information technology, electronic

equipment and instruments, vehicles, medicines, food

items, building maintenance materials, office supplies,

construction, furniture, etc.) taking into account local

economic and other conditions.

ii. Advise the requisitioning units and recipient entities on

the full range of procurement issues, provide support

and guidance at all stage of the procurement cycle.

iii. Prepare/oversee preparation and distribution of

invitations to tender and manage/conduct all aspects of

bid/proposal evaluations.

iv. Formulate strategies and design innovative solutions to

resolve issues of conflicts for complex procurement

projects.

v. Establish and maintain work program and schedule for

ongoing contracts and new contracts.

vi. Participate in the negotiations with senior supplier

representatives; sign procurement orders up to the

authorized limits, and in cases where the amount

exceeds authorized limits prepare submissions to the

Contracts Committee for review and subsequent

approval.



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vii. Conduct market research to keep abreast of market

developments, research and analyze statistical data and

market reports on the global commodity market,

production patterns and availability of goods and

services.

viii. Identify new technologies and products/services,

evaluate and recommend potential supply sources and

participate in the incorporation of research results into

the procurement program.

ix. Monitor adherence to contractual agreements,

recommend amendments and extensions of contracts,

and advise concerned parties on their contractual rights

and obligations.

x. Prepare a variety of procurement related documents,

contracts, communications, guidelines and instructions.

xi. Supervise a team of buyers if needed and provide them

with necessary guidance and advice as required.

b. The Applicant’s e-PAS report from the 2013-2014 cycle provides that

(emphasis omitted):

Goal 1:

Description and Related Actions: [e]ffectively contribute to the

[t]eam’s goals of providing high-quality client services in

procuring services for requisitioners ([United Nations] offices

in and away from [Headquarters], field Missions, [United

Nations] agencies and entities in the [United States] and all

over the world).

Actions:

All procurement processes viz [unknown abbreviation],

sourcing, source selection plan, research for suppliers;

guide/liaise for supplier registration, communicate with

suppliers/requisitioners/field Missions/Accounts to resolve

situations that may arise, and with [the Office of Legal

Affairs]/Insurance for complex solicitations, draft/despatch

solicitation documents, analyse/evaluate proposals,

present/defend cases with recommendations to the

Headquarters Committee on Contracts (HCC),

review/analyse/present cases from field missions to the HCC,

negotiate and draft complex contracts, efficiently provide

quality responses and guidance to field

missions/requisitioners/suppliers including clarifying [United



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Nations] procurement policy/procedures, maintain proper

records, persistently move things along when required,

maintain a positive dialogue and good professional working

relations with clients and suppliers.

Success Criteria:

(1) Deadlines met as agreed upon by [t]eam.

(2) Feedback from clients to [t]eam [l]eader and Section

Chief of good professional working relations and

communication, and of efficient and effective service.

Goal 3:

Description and Related Actions:

i. Effectively handle challenges specific to the Vehicles

Team[;]

ii. Sale of [United Nations] assets[;]

iii. Extensive research to source potential suppliers for

specialised vehicular equipment for which there may

not be many registered vendors in [the United Nations

Procurement Division’s (“UNPD”)] database, and help

them through the vendor registration process[;]

iv. Post-contract maintenance and administration[.]

Success Criteria:

(1) Increase in number of vendors sourced[;]

(2) Kept updated lists of spare parts[;]

(3) Satisfactorily helped resolve issues related to contract

administration[.]

Mid-[p]oint [c]omments:

[FRO]: [the Applicant] joined the EST [unknown abbreviation]

team in July 2013. The responsibilities assigned to her are[:] i)

management of the Field Defense portfolio, which includes

administration of current contracts and establishment of related

new contracts[;] ii) review of LCC [unknown abbreviation]

/HCC case presentations originating from field missions[;] iii)

drafting of official memos and contracts[;] and iv) market

survey, among others. [The Applicant] has organized the share

file at her own initiative. She is currently adapting to the pace

of work and the team dynamics.

c. The Applicant’s e-PAS report from the 2014-2015 cycle provides that

(emphasis omitted):



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Goal 1:

Description and Related Actions: [t]o optimise the acquisition

process and improve procurement services in relation to

service delivery, in particular to reduce the time required to

process requirements, execute [purchase orders]/[c]ontracts

and communicate and report to customers.

Related Actions:

i) Train customers on how the procurement process works

and what customers need to do to allow the

Engineering Support Team to render services more

efficiently and professionally[.] Organise monthly

review meetings with customers to monitor acquisition

plan, provide updates and discuss any other issues.

ii) Implement and monitor personal Key Performance

Indicators (KPIs): (a) increase in procurement cases

pre-cleared by HCC to help [UNPD] meet its target-of

45% for the performance evaluation year; [b] Decrease

in procurement cases per year rejected by HCC to help

[UNPD] meet its 10% target; (c) Process and post

Expressions of Interest within three (3) days of receipt;

(d) for Statement of Requirement/Works requiring no

further input from requisitioners including

changes/discussions, prepare and send RFP/ITB

[unknown abbreviation] documents within a ten (10)

day time-frame after receipt of the SOR/SOW

[unknown abbreviation].

iii) Continuously search for new commercial sources and

potential vendors, which may be able to provide

goods/services/solutions that meet customers’

requirements.

Success Criteria:

i) Held monthly meetings as per (i) above.

ii) Met KPIs as per (ii) above.

[iii]) Identified and included on the sourcing list additional

vendors from developing countries and countries with

economy in transition to help [UNPD] meet its target of

40%.

Goal 3:

Description and Related Actions: Improve professional

Procurement knowledge/skills; timely submission of

evaluation.



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Related Actions:

i) Attempt and succeed in on-line procurement training

programme.

ii) Identify other appropriate internal and external training

programmes in line with role and responsibility and strive for

professional growth.

Success Criteria:

i) complete the procurement training programme.

ii) Participate in internal (mandatory, [UNPD], OHRM or

other departments’ training) and external training

sessions in the performance evaluation year, in line

with [the Applicant’s] role and responsibilities.

iii) Complete and submit in Inspira [the Applicant’s]

performance document within the deadline and achieve

the goals set at the beginning of [the] reporting period.

72. The Tribunal concludes that as results from her entire application which

includes the cover letter, the PHP and the two e-PAS reports, the Applicant appeared

to fulfil not only the basic and desirable requirements, but also the highly desirable

requirements regarding work experience.

73. The Tribunal concludes that the Applicant’s application for the three P-3 posts

was not fully and fairly considered, since the Hiring Manager did not personally

evaluate her candidacy based on the information included in the PHP and e-PAS

reports, while formally endorsing the decision of the CSS/OSU not to shortlist the

Applicant. The Applicant’s e-PAS reports contained essential information regarding

the Applicant’s fulfilment of the highly desirable requirements for the JO.

74. The Tribunal considers that the established practice that was followed in this

selection exercise was against the legal provisions and that the preliminary evaluation

of the Applicant against the desirable and highly desirable requirements of the JO

was not correct.

75. The Tribunal notes that no rating was given by the Hiring Manager to the

Applicant regarding whether she was fulfilling the desirable requirements for the



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posts, and the evaluation consisted only in a statement of “yes” or “no” made by the

CSS/OSU.

76. The Tribunal underlines that a rating of competencies, according to the

definition of “rate” provided by the Oxford Dictionary, consists in grading,

“estimating the worth or value of” each of the required and/or desirable

competencies, as described in the JO for each post. In addition, the Webster

Dictionary, Fourth Edition (2012) defines “rating” as “placement in a certain rank or

class”. It results that no such placement of the Applicant according to her

competencies was made during the preliminary evaluation of her application for the

three P-3 level posts. The Tribunal observes that the Applicant was not given ratings

but the evaluation included general responses by “yes” or “no”. The required general

comment for United Nations Secretariat staff members was not included, but included

only the statement “yes: UNHQ [United Nations Headquarters]”. Furthermore, the

Tribunal observes that the Applicant’s last two e-PAS reports filed as part of her

application clearly indicate under “Section 1 – Goals” and under “Section 6 – Mid-

Points Comments” made by her First Reporting Officer (“FRO”) that the Applicant,

who was evaluated as “successfully meets expectations”, was already undertaking

professional responsibilities similar to the highly desirable ones indicated in the JO.

However, the Applicant was not shortlisted because the Hiring Manager did not

consider the application in its entirety, including the two e-PAS reports, which are a

constitutive part of the application and which during the selection process constitute a

source of information regarding the Applicant’s work experience within the United

Nations.

77. In light of the above-mentioned considerations, the Tribunal concludes that

the Applicant was not fully and fairly considered for the three P-3 posts to which she

applied, and the appeal is to be granted.

Relief

78. The Tribunal notes that the Applicant requested the following reliefs:



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a. Order the Secretary-General to assess the way the vacancies,

i.e. [TJOs and JOs] […] are managed and advertised, to avoid

wasting resources of applicants (internal and non-[United

Nations]) who believe the vacancies to be genuine; and

b. [The Applicant] will agree to whatever compensation the

Dispute Tribunal considers to be fair and reasonable in this

case.

79. The Tribunal underlines that as results from the above considerations, the

contested decision not to shortlist the Applicant pursuant to ST/AI/2010/3 is to be

rescinded as being unlawful.

80. Pursuant to art. 10.5(a) and (b) of the United Nations Dispute Tribunal’s

Statute, the Tribunal can order rescission of the contested decision and/or specific

performance:

… As part of its judg[…]ment, the Tribunal may only order one or

both of the following:

(a) Rescission of the contested administrative decision or specific

performance, provided that, where the contested administrative

decision concerns appointment, promotion or termination, the Dispute

Tribunal shall also set an amount of compensation that the respondent

may elect to pay as an alternative to the rescission of the contested

administrative decision or specific performance ordered, subject to

subparagraph (b) of the present paragraph;

(b) Compensation for harm, supported by evidence, which shall

normally not exceed the equivalent of two years’ net base salary of the

applicant. The Dispute Tribunal may, however, in exceptional cases

order the payment of a higher compensation for harm, supported by

evidence, and shall provide the reasons for that decision.

81. The Tribunal concludes that it has no competence to order the Secretary-

General to assess the way the vacancies, i.e. JOs and TJOs, are managed and

advertised, but only to review the lawfulness of the decisions taken based on the

existing legal provisions, even though when it considers it necessary, the Tribunal

may make observations and/or recommendations related to specific legal aspects of

the current existing provisions. Therefore, the above-requested relief is to be rejected.



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Moral damages

82. Article 10.5(b) of the Dispute Tribunal’s Statute was amended by the General

Assembly in December 2014 and the text has introduced, as a mandatory new

requirement, that the Dispute Tribunal may only award compensation “for harm,

supported by evidence”. This requirement is both substantive, because the

compensation can only be awarded for harm, and procedural, because the harm must

be supported by evidence.

83. In the Black’s Law Dictionary, 6th Ed. (1990), the word “harm” is defined as

“[a] loss or detriment in fact of any kind to a person resulting from any cause” (see p.

718).

84. It results that, since art. 10.5(b) of the Dispute Tribunal’s Statute makes no

distinction between physical, material or moral harm, the provision is applicable to

any types of harm and that the harm must be supported in all cases by evidence.

85. In Benfield-Laporte 2015-UNAT-505, the United Nations Appeals Tribunal

held that (see para. 41, footnote omitted):

… [W]hile not every violation of due process rights will

necessarily lead to an award of compensation, damage, in the form of

neglect and emotional stress, is entitled to be compensated. The award

of compensation for non-pecuniary damage does not amount to an

award of punitive or exemplary damages designed to punish the

Organization and deter future wrongdoing.

86. Further in Kallon 2017-UNAT-742, the majority of the full bench of the

Appeals Tribunal decided, in paras. 62-66 and 68, that (footnotes omitted):

... The authority conferred by the [Dispute Tribunal] Statute to

award compensation for harm thus contemplates the possibility of

recompense for non-economic harm or moral injury. But, by the same

token, Article 10(7) of the [Dispute Tribunal] Statute prohibits the

[Dispute Tribunal] from awarding exemplary or punitive damages.

The dividing line between moral and exemplary damages is not very

distinct. And for that reason, a proper evidentiary basis must be laid

supporting the existence of moral harm before it is compensated. This



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prudent requirement is at the heart of the amendment of Article

10(5)(b) of the [Dispute Tribunal] Statute by General Assembly

resolution 69/203. For a breach or infringement to give rise to moral

damages, especially in a contractual setting (including the contract of

employment), where normally a pecuniary satisfaction for a

patrimonial injury is regarded as sufficient to compensate a

complainant for actual loss as well as the vexation or inconvenience

caused by the breach, then, either the contract or the infringing

conduct must be attended by peculiar features, or must occur in a

context of peculiar circumstances. Whether damages can be recovered

depends therefore on evidence of the purpose and ambit of the

contract, the nature of the breach, and the special circumstances

surrounding the contract, the breach and its positive or negative

performance.

... Generally speaking, the presence of certain circumstances may

lead to the presumption of moral injury – res ipsa loquitur. The matter

may speak for itself and the harm be established by the operation of

the evidentiary presumption of law. However, when the circumstances

of a certain case do not permit the application of the evidentiary

presumption that such damages will normally follow as a consequence

to an average person being placed in the same situation of the

applicant, evidence must be produced and the lack of it may lead to the

denial of compensation. Much will necessarily depend on the evidence

before the [Dispute Tribunal].

... Conscious of the amendment and its purpose, the [Dispute

Tribunal] in this case thoughtfully deliberated upon the nature of the

harm caused by the injury and the evidence before it supporting a

finding of harm. In reaching its conclusion, the [Dispute Tribunal] was

guided by the principles pronounced by this Tribunal in Asariotis

[2013-UNAT-309] prior to the amendment of Article 10(5)(b) by

General Assembly resolution 69/203. In that case this Tribunal said:

… To invoke its jurisdiction to award moral damages, the

[Dispute Tribunal] must in the first instance identify the moral

injury sustained by the employee. This identification can never

be an exact science and such identification will necessarily

depend on the facts of each case. What can be stated, by way

of general principle, is that damages for a moral injury may

arise:

(i) From a breach of the employee’s substantive

entitlements arising from his or her contract of

employment and/or from a breach of the procedural due

process entitlements therein guaranteed (be they

specifically designated in the [s]taff [r]egulations and

[r]ules or arising from the principles of natural justice).



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Where the breach is of a fundamental nature, the breach

may of itself give rise to an award of moral damages,

not in any punitive sense for the fact of the breach

having occurred, but rather by virtue of the harm to the

employee.

(ii) An entitlement to moral damages may also arise

where there is evidence produced to the Dispute

Tribunal by way of a medical, psychological report or

otherwise of harm, stress or anxiety caused to the

employee which can be directly linked or reasonably

attributed to a breach of his or her substantive or

procedural rights and where the [Dispute Tribunal] is

satisfied that the stress, harm or anxiety is such as to

merit a compensatory award.

… We have consistently held that not every breach will

give rise to an award of moral damages under (i) above, and

whether or not such a breach will give rise to an award under

(ii) will necessarily depend on the nature of the evidence put

before the Dispute Tribunal.

... The distinction drawn between the two categories of moral

injury or non-patrimonial damages in Asariotis has two dimensions.

On the one hand, it speaks to the kinds of moral damage ordinarily at

issue and, on the other, mentions the kind of evidence necessary to

prove each kind of moral damage.

... The first kind of moral injury acknowledged in Asariotis takes

the form of a fundamental breach of contract resulting in harm of an

unascertainable patrimonial nature. Awards of moral damages in

contractual suits by their nature are directed at compensating the harm

arising from violations of personality rights which are not sufficiently

remedied by awards of damages for actual patrimonial loss. The harm

experienced by a blatant act of procedural unfairness may constitute an

infringement of dignitas, not in all but especially in severe cases.

Recognizing a right to dignity is an acknowledgement of the intrinsic

worth of human beings. Human beings are entitled to be treated as

worthy of respect and concern. The purpose of an award for

infringement of the fundamental right to dignity is to assuage wounded

feelings and to vindicate the complainant’s claim that his personality

has been illegitimately assailed by unacceptable conduct, especially by

those who have abused administrative power in relation to him or her

by acting illegally, unfairly or unreasonably.

…

... The evidence to prove moral injury of the first kind may take

different forms. The harm to dignitas or to reputation and career



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potential may thus be established on the totality of the evidence; or it

may consist of the applicant’s own testimony or that of others, experts

or otherwise, recounting the applicant’s experience and the observed

effects of the insult to dignity. And, as stated above, the facts may also

presumptively speak for themselves to a sufficient degree that it is

permissible as a matter of evidence to infer logically and legitimately

from the factual matrix, including the nature of the breach, the manner

of treatment and the violation of the obligation under the contract to

act fairly and reasonably, that harm to personality deserving of

compensation has been sufficiently proved and is thus supported by

the evidence as appropriately required by Article 10(5)(b) of the

[Dispute Tribunal’s] Statute. And in this regard, it should be kept in

mind, a court may deem prima facie evidence to be conclusive, and to

be sufficient to discharge the overall onus of proof, where the other

party has failed to meet an evidentiary burden shifted to it during the

course of trial in accordance with the rules of trial and principles of

evidence.

87. In the application, the Applicant indicated that she requested “whatever

compensation the Dispute Tribunal considers to be fair and reasonable in this case” as

moral damages for the Administration’s failure to fully and fairly consider her

candidacy. It results that the Applicant’s request for moral damages relates to the first

category of moral damages identified in Asariotis.

88. As results from para. 70 from the Judgment of the Appeals Tribunal in Kallon

2017-UNAT-742, additional evidence is required in case of mental distress or anxiety

allegedly produced by the contested decision, evidence which can consist in an

applicant’s testimony and/or medical or psychological report(s)/evidence to prove

that the harm can be directly linked or is reasonably attributable to the breach of

violation.

89. This Tribunal agrees with the majority decision taken in Kallon and considers

that, in the present case, the Applicant suffered moral harm as a result of the unlawful

decision which breached her due process right to have his complaint fully and fairly

considered by the Administration as proved by the totality of evidence according to

the standard of proof established by the Appeals Tribunal in Kallon, “[t]he evidence

to prove moral injury of the first kind may take different forms. The harm to dignitas



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or to reputation and career potential may thus be established on the totality of the

evidence”.

90. Taking in consideration all the circumstances of the case, the Applicant’s

request for moral damages is therefore to be granted. The Tribunal considers that the

present judgment, together with USD3,000, represents a reasonable and sufficient

compensation for the moral harm caused to the Applicant by the Administration’s

failure to fully and fairly consider her application for each of the three P-3 posts.

Conclusion

91. In light of the foregoing, the Tribunal DECIDES:

a. The application is granted in part, the Respondent is to pay the

Applicant USD3,000 as moral damages caused by the

Administration’s failure to fully and fairly consider the Applicant for

each of the P-3 posts advertised in the JO.

b. The Applicant’s request for the Tribunal to order the Secretary-

General to assess the way the vacancies, i.e. TJOs and JOs are

managed and advertised, to avoid wasting time and resources of

applicants (internal and non-United Nations) who believe the

vacancies to be genuine is rejected.

Observation

92. Taking into consideration the importance of the staff selection system adopted

in 2010 which continues to be applied and the necessity of having accurate,

transparent and fair procedural rules and guidelines during the entire selection

process and having reviewed the content of ST/AI/2010/3 vis-a-vis the instructional

manuals, the Tribunal recommends a substantive review to be conducted by the

Organization.



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93. Such a substantive review, which is expected to be conducted on an urgent

basis, should harmonize all the procedural details included in ST/AI/2010/3 and each

of the instructional manuals, including the ones regarding the specific role and

mandate of the Recruiter and the Hiring Manager during each step of the selection

procedure. The harmonization of the existing provisions or the adoption of new

additional provisions in the manuals must ensure that their content is not exceeding

and/or contravening the mandatory content of the principles and legal provisions of

the United Nations Charter and ST/AI/2010/3 and that all the different interpretations

and /or established irregular practices within the entire Organization will be

corrected.

(Signed)

Judge Alessandra Greceanu

Dated this 20th day of February 2018

Entered in the Register on this 20th day of February 2018

(Signed)

Morten Albert Michelsen, Officer-in-Charge, New York

n d t judgment no.: undt/2018/020 nited ations ispute

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